Judge Rules Patriot Act Provisions Illegal

[Ordie]

This is a MAJOR BLOW to the Bush Administration and the Justice Department.

In sum, the Judge upheld the 4th Amendment of the Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Justice Department may want to elevate it to the 9th Circut Court in San Francisco, but chances of overturning this judge's ruling in that court are slim.

And the Justice Department may change hands by the time it reaches to the Supreme Court. The next administration may drop the appeal.

It's a good day for Democracy and due process.


J
Judge Rules Provisions in Patriot Act to Be Illegal
NY Times
Published: September 27, 2007


WASHINGTON, Sept. 26 — A federal judge in Oregon ruled Wednesday that crucial parts of the USA Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause.
The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation (http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_bureau_of_investigation/index.html?inline=nyt-org) mistakenly linked him to the Madrid train bombings in March 2004.
“For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.”
The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.
Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.
Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.
Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban (http://topics.nytimes.com/top/reference/timestopics/organizations/t/taliban/index.html?inline=nyt-org) and Al Qaeda (http://topics.nytimes.com/top/reference/timestopics/organizations/a/al_qaeda/index.html?inline=nyt-org).
Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.
Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.
It was that suit on which Judge Aiken ruled Wednesday. Her opinion said the court recognized that “a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.”
In examining the history of the Federal Intelligence Surveillance Act, the opinion discussed a change by Congress in October 2001, under the Patriot Act, that allows surveillance and searches if the government declares that “a significant purpose” of that activity is gathering foreign intelligence. In the past, such searches and surveillance had been allowed if “the purpose” was to obtain foreign intelligence.
Congress’s intent, the opinion said, was “to break down barriers between criminal law enforcement and intelligence gathering.” Judge Aiken said a practical effect of “a seemingly minor change in wording” was to allow the government to avoid the constitutional probable cause requirement.
“In place of the Fourth Amendment,” the judge wrote, “the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.”
She said the government was “asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning.”
A spokesman for the Justice Department, Peter Carr, said it was reviewing the decision and declined to comment further.
A lawyer for Mr. Mayfield, Elden Rosenthal, issued a statement on his behalf saying that Judge Aiken “has upheld both the tradition of judicial independence and our nation’s most cherished principle of the right to be secure in one’s own home.”
Source:http://www.nytimes.com/2007/09/27/washington/27patriot.html?ref=us

[pistol]

According to Judge Aiken:



In place of the Fourth Amendment, the people are expected to defer to the executive branch and its representation that it will authorize such surveillance only when appropriate.


And



[The government] is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. The court declines to do so."


Maybe Judge Aiken doesn't know that we are at war and we don't have time for his liberal activist constitutionalism! The Bill of Rights doesn't apply to terrorists. This judge is stuck on a pre-9/11 mindset and should be impeached!

[Ordie]

Bill of Rights doesn't apply to terrorists. This judge is stuck on a pre-9/11 mindset and should be impeached!

The FBI initially identified the fingerprints of the Madrid Bombing to that of Brandon Mayfield, and American citizen residing in Oregon, and search his home and computer without a warrant under the provisions of the Patriot Act.

The FBI goofed and mis-read the fingerprints and admitted its mistake.

The Justice Department apoligized to Mr. Mayfiled settled for $2 million with provision that he can proceed with legal action on this case.

If were going to fight this war, we need to fight on our terms under the rule of law. To do otherwise, will in the end, be counterproductive.

[RECON DOC]

It is reassuring to know that someone in a position of responsibility has their head screwed on right and doesn't cow tow to the psychotic, OMFG TERRORISTS, neocons.

Kudos to her.

[dimasorokine]

President Bush, The Patriot Act, War On Drugs, 3 Strike Prison Rules, Iraq War, IRS - all make me dislike America and focus on the negatives of the country...

News like this makes me realize why America is supposed to be great.

-Dima

[TheBelgian]

According to Judge Aiken:



And



Maybe Judge Aiken doesn't know that we are at war and we don't have time for his liberal activist constitutionalism! The Bill of Rights doesn't apply to terrorists. This judge is stuck on a pre-9/11 mindset and should be impeached!

Maybe Judge Aiken just believes in upholding 200 years of the rule of law rather than giving into the kneejerk legislation that is the Patriot Act.

[Calanen]

According to Judge Aiken:

And

Maybe Judge Aiken doesn't know that we are at war and we don't have time for his liberal activist constitutionalism! The Bill of Rights doesn't apply to terrorists. This judge is stuck on a pre-9/11 mindset and should be impeached!

The Constitution doesnt become optional once the US is at war. WW2 was by far a bigger threat to the US than AQ ever could be - and the Constitution was not scrapped during WW2. No reason it should be now either.

All attorneys take an oath to defend the Constitution - and that oath has no carve out for panic merchants.

[LMAV]

The Constitution doesnt become optional once the US is at war. WW2 was by far a bigger threat to the US than AQ ever could be - and the Constitution was not scrapped during WW2. No reason it should be now either.


Are you sure about that?

[little icebear]

X2 to the last 4 members postings.

[shocker1]

Good, I have been against this crap from day one. Two days after 911 the Patriot Act was ready to go. I wished they would work that fast on SSI, immigration ect.............................................................................

[Calanen]

Are you sure about that?

Which bit? That AQ are less of a threat than the Third Reich and the Empire of Japan which killed approx 300,000 US service personnel, or that the constitution was not suspended in WW2? I'm reasonably sure of both.

[noname]

Good, I have been against this crap from day one. Two days after 911 the Patriot Act was ready to go. I wished they would work that fast on SSI, immigration ect.............................................................................

What you said. It is funny how fast that legislation was drawn up. Makes one wonder how can government become so efficient so fast and at other times be itself.

[hank]

Maybe Judge Aiken doesn't know that we are at war and we don't have time for his liberal activist constitutionalism! The Bill of Rights doesn't apply to terrorists. This judge is stuck on a pre-9/11 mindset and should be impeached!

The 4th Amendment applies to every US citizen who is in the United States and always has. The problem with this portion of hte Patrio At recognized by the Judge is that the government was listening to conversations with US citizens who were in the US without having to show probable cause. That is unconstitutional and always has been.

I'm sure Judge Aiken is keenly aware that we are at war with terrorists. How could she not be? Being in an undeclared war does not, however, effect the US Govt's responsibilities under the 4th Amendment.

On what basis would you impeach Judge Aiken? Because you disagree with her? Good idea.

hank

[shocker1]

If security was the issue the services would work together without the need for Patriot Acts or other cleverly named bills. The border would not be an issue because the top issue of security would take care of that one would expect. All I have endured are lines, asshole stare downs at the airport, seatbelt safety check points, flashlights in my face at these check points, forced purchase of private auto insurance and of course all your electronic data is searched and illegals are not prosecuted oh man I could go on!!! I am tired of it

[gaijinsamurai]

Ann Aiken used to be a Circuit Court judge, and I would testify before her on occasion in parole/probation violation hearings, before she was nominated for her present position. She is very sharp. Incidentally, her husband is a retired political science professor at the University of Oregon, who specialized in the Supreme Court and Constitution.
I have a lot of respect for her, as well as Mr. Mayfield, for not letting the Bush Administration get away with this.
And, Mr. Mayfield is a former US Army officer.

[Johnny_H02]

It is reassuring to know that someone in a position of responsibility has their head screwed on right and doesn't cow tow to the psychotic, OMFG TERRORISTS, neocons.

Kudos to her.


I agree 100%

[Hollis]

The FBI initially identified the fingerprints of the Madrid Bombing to that of Brandon Mayfield, and American citizen residing in Oregon, and search his home and computer without a warrant under the provisions of the Patriot Act.

The FBI goofed and mis-read the fingerprints and admitted its mistake.

The Justice Department apoligized to Mr. Mayfiled settled for $2 million with provision that he can proceed with legal action on this case.

If were going to fight this war, we need to fight on our terms under the rule of law. To do otherwise, will in the end, be counterproductive.


When people are involved the "Goofed" factor is ever present. The reason for the courts is to settle legal issues, not all issues are 100% clear and depending on the court the "interpretation" of that issue can vary.

9th District is notorious for it rendering a "very Liberal" interpretation to any legal issue.

BTW Standard interpetation that LEO have the right to act on a reasonable belief that a crime has been committed whether in fact it has been committed or not (basic Criminal law 101). The facts of the case is determined during the trial process. If the Court/jury agrees with the LEO, then a guilty verdict is rendered. If they do not agree with the LEO, then a not guilty verdict is rendered.

[Ordie]

Ann Aiken used to be a Circuit Court judge, and I would testify before her on occasion in parole/probation violation hearings, before she was nominated for her present position. She is very sharp. Incidentally, her husband is a retired political science professor at the University of Oregon, who specialized in the Supreme Court and Constitution.
I have a lot of respect for her, as well as Mr. Mayfield, for not letting the Bush Administration get away with this.
And, Mr. Mayfield is a former US Army officer.

Thanks for the background.

Given this ruling, I'm beginning to have faith in our system once again.

[2Sheds_Jackson]

The Constitution doesnt become optional once the US is at war. WW2 was by far a bigger threat to the US than AQ ever could be - and the Constitution was not scrapped during WW2. No reason it should be now either.

All attorneys take an oath to defend the Constitution - and that oath has no carve out for panic merchants.

The president takes the same oath. I would place my fate in the average president's hands long before I'd do the same with the average attorney.

You may want to look into FDR's illegal domestic wiretapping, internment camps, and detention without trial before making proclamations about the Constitution and WWII.

I think anybody viewing this within the context of a defeat for "the Bush administration" is woefully short-sighted. Bush will be a distant memory soon enough, and we'll still have AQ looking to carry out spectacular attacks. The law was probably badly written, but if we can't even rise above petty politics, we'll never get where we need to be.

And I hope you all know that pistol was being sarcastic just to stir the pot. The rat bastard. p-)

[shocker1]

I think anybody viewing this within the context of a defeat for "the Bush administration" is woefully short-sighted. Bush will be a distant memory soon enough, and we'll still have AQ looking to carry out spectacular attacks. The law was probably badly written, but if we can't even rise above petty politics, we'll never get where we need to be.


Alright you are starting to sound like a White house Presser transcript.:)

Since when have Islamic Terrorists not been wanting spectacular attacks? You know the law is bad because they either wrote it in two days or wrote it for some other handy dandy reason years ago. Either way my opposition to these funny named acts is content not whether Bush looks bad, he did I fine job of that himself.

[2Sheds_Jackson]

Alright you are starting to sound like a White house Presser transcript.:)

Since when have Islamic Terrorists not been wanting spectacular attacks? You know the law is bad because they either wrote it in two days or wrote it for some other handy dandy reason years ago. Either way my opposition to these funny named acts is content not whether Bush looks bad, he did I fine job of that himself.

Ok I'll grant you that the naming is gay. Gay gay gay. They can't just name it something cool and straightforward like - Domestic Surveillance Law 217-7A or something, oh no, it's the "Rainbow-Brite Twinkletime Jamboree Act".

My position is that in the face of a threat that killed 3000 of our civilians, and caused untold billions of dollars in damage in a single day, with a handful of men, on a budget of under $200k, we cannot afford to keep doing business as we were prior to 9/11. Now obviously it will be human nature to over-react, and it will take time to shake out the various laws to something we can live with - but I'm of the opinion that the world is fundamentally changing, and unless we change with it, we're gonna be in serious trouble.

We can be as idealistic as we like, but there's nothing written in stone anywhere that says we have to exist, or be prosperous, or be immune from downturns similar to the Great Depression, etc. I'm content to give up a little bit of my supposed freedom in exchange for stability. I guess it's just a question of finding the right balance.

[shocker1]

Ok I'll grant you that the naming is gay. Gay gay gay. They can't just name it something cool and straightforward like - Domestic Surveillance Law 217-7A or something, oh no, it's the "Rainbow-Brite Twinkletime Jamboree Act".

I'm content to give up a little bit of my supposed freedom in exchange for stability. I guess it's just a question of finding the right balance.
HAHAHA at least you agree on the catchy you better vote for me or else you will be labeled un-patriotic name.

That last bit however is where we part ways. I will not exchange any freedoms perceived or proven. That is not what I see in the law, what I see is a broad law that can be interpreted to suit the need. Well written as such and it is a damn good thing for religious folks Mrs. Reno did not have this power in the 90's.

[dangerclose]

Well written as such and it is a damn good thing for religious folks Mrs. Reno did not have this power in the 90's.

Like that mattered to these folks:

http://i20.tinypic.com/vfxclu.jpg

[gaijinsamurai]

Waco?
123456789

[Hollis]

I think some are missing how the system works. Every police action can/could be challenged on some constitutional wrong. How far that challenge can go is based on several factors. That is the purpose of the courts to begin with. You say "A", I say "B" so how do we decide? We argue before the court. or we could just shoot it out on main street at high noon.


We operate between to political opposites, anarchy and totaltarianism. We move in one or the other direction. We will always move depending on the political winds and whims of the time. Because we are moving towards anarchy does not say we are going to become that way or the same with totaltarianism.


This is our compass or desired path;

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America"

So the issue is how do we get there, as changes in technology, science, social conscience, etc, etc, etc, How do we as people maintain that goal and direction.

Part in all of this is that the framers of our constitution realized the inherent corruption of power and human nature designed the three branchs to watch over each other and that those three branches are also held in check by the people.


A very good read is to read the Supreme Court Opinion on Brown Vs Board of Education which reversed the decision of Plessey Vs Ferguson. There was a reason from both decissions to be rendered at the time when the court decide on those cases.

Our Freedoms are interwoven with our security as a people. We can not separate those two, or hold one up greater than the other. It is a constant balancing act to maintain both.

As we move through uncharted political waters we should expect and can expect the courts to look at and adjust our course as needed.

[dedbunniez]

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.
-Ben Franklin

But then what is essential liberty?

[hank]

The point here is and always has been that the 4th Amendment protects all American citizens (and non-citizens in the US) from search and seizure of items they reasonably expect to remain private without a warrant supported by probable cause. That is the language of hte 4th amendment.

The idea that some lesser standard than probable cause can ever apply is a judge-created idea. The reasonable suspicion standard for arrests is an example. The 4th amendment does not expressly allow for a reduced standard but courts recognized that in the world of easy travel in which we live that LEO need the ability to search your car without getting a warrant. That is a perfect example of a court "bending" the constitution to fit modern reality. Thus, "bending" the 4th Amendment to fit modern realities has been done in other contexts succesfully and unsuccessfully - like the Scalia decision regarding infrared cameras to find houses where MJ is grown

The problem with this portion of the Patriot Act was that it basically took any judicial review away from the equation and reduced the 4th Amendment's protections to essentially nothing. As Hollis has correctly pointed out the role of all courts is to decide disputes. Here there was no opportunity to dispute what LEO did because you never even knew the 4th amendment violation had happened and LEO never had to ask for permission to eavesdrop.

This has been one of the issues where the Bush and the DOJ, imho, have really been asleep. The position the Bush DOJ has consistently taken on this issue has never really even been colorable under the constitution. These actions were always unconstitutional - even on the day the Patriot Act was signined into law.

The idea that this portion of the Patriot Act was some kind of adaptation of the 4th Amendment to modern times really has no basis in fact or law. It has never been constitutional for any LEO to listen to the conversations of anyone in the US without satisfying the probable cause requirement. If the Patriot Act had tried to loosen the requirement in some reasonable way this decision might have been different. The fact is, however, that the way DOJ interepreted this portion of the Act and the way it got implemented has always been unconstitutional.

Also, never forget that if the 4th Amendment puts us at a disadvantage in the war on terror (and it might) that we as a country can amend the constitution to remedy any problems created by the 4th amendment. To ignore the 4th Amendment because it is inconvenient is wrong and I'm proud of Aiken for saying so. I happen to think the benefit of the 4th outweighs any burden but for those of you who decry the 4th's burden you have a method for redress and it does not involved impeaching judges who interpret the law as their job requires.

hank

[hank]

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.
-Ben Franklin

But then what is essential liberty?

Any liberty provided for in the constitution is the "essential" liberty Franklin referred to imho.

Certainly the right to be free from search and seizure was one of the core concepts the framers wanted to address. They had lived through years of indiscriminate search and seizure and were keen to be protected from absolute power to search and seize.

I would think that any of rights in the first 10 amendments (the Bill of Rights) would have been essential to Franklin. Today, it would probably be hard to argue that any of the rights granted in the first 14 amendments are essential.

hank

[2Sheds_Jackson]

Very interesting. I read the judge's opinion and the plaintiff's filing - it appears they mounted a two ****ged attack - on one hand alleging discrimination on the part of the FBI because Mayfield is Muslim, and on the other hand, dragging the Patriot Act in to invalidate the basis for the search/surveillance.

As I read it, the meat of the case is this:
-the FBI gets handed a latent finger print which they identify as Mayfields. Not just one fingerprint expert, but by my count, five fingerprint experts certify that it's Mayfield. Five. So the FBI believes this man handled a bag of detonators used by the Madrid bombers.

Then they ascertain that he's Muslim. Then they find out he had a previous case defending an AQ member. So the FBI is on the hook. They're wrong, mind you, but they don't know it. They believe they have probable cause to mount surveillance.

Before the Patriot Act, they would have had to take their case in front of a court (i.e. judges) who, being impartial (restraining my urge to laugh...the 9th Circuit Court was invoked during the proceedings p-)), would look at the FBI's case and see if it had merit to move forward.

But under the Patriot Act, all they had to do was go through the same process - but get that same approval...from a high ranking member of the Executive branch.

Therein lies the seed of the power struggle - and a judge who is essentially allowed to decide on matters pertaining directly to her. Not saying that she is of course - just that it's a weakness of our system to allow one individual to enhance her own fortunes by deciding one way or the other.

If the FBI had gone to the panel of judges on the FISA court, with the same certifications, the same allegations, the same connections and reasonable suspicions, they would likely have been given the same OK to go ahead and do the same surveillance.

We all know what the 4th amendment says - and I don't find the word "court" or "judge" in it anywhere. One could easily argue that it merely demands that some unspecified organ of the government be presented with reasonable evidence (probable cause), name the person / thing they are after, and that it be supported by an official under oath. But the basis for ruling the 2 provisions of the Patriot Act is the fact that no court was involved in the approval process.

In other words, what I'm saying is (and not very well) - is that there was plenty of probable cause here. Enough to get the FBI's signature, enough to get a FISA judge's signature too in my opinion - so the lack of probable cause is not the root of the issue. The issue is the approval authority for what constitutes probable cause. The judge here says it's not probable cause unless another judge says so.

Of course there's a bunch of hooey (IMHO) thrown in the case about Congress changing the wording of the FISA statute, from foreign intel being the "primary" concern to only being a secondary concern, but to me that all looks like window dressing designed for public consumption...which the press seems to have obediently passed on in print as being somehow relevant.

Like the judge's...just my opinion.

- here's (http://i.a.cnn.net/cnn/2007/images/09/26/mayfield.patriotact.summary.judgment.pdf) a .pdf of the judge's opinion -

[shocker1]

@ 2 sheds
Thanks for that link. It shows very well the opinion is correct. I cite this for example

On March 13, 2004, the SNP submitted digital photographs of
the latent fingerprints lifted from the plastic bag to Interpol
Madrid, which then transmitted the digital photographs to the FBI
in Quantico, Virginia. On that same day, the Latent Print Unit
of the FBI initiated an Automated Fingerprint Identification
System ("AFIS") search in an attempt to match the latent prints
received from Spain with known prints in the FBI computer system.
The FBI was unable to locate a fingerprint match.
On March 14, 2004, the FBI requested and received from Spain
higher resolution digital photographs of the eight latent prints
Page 6 - OPINION AND ORDER
and on March 15, 2004, another AFIS search was performed. The
FBI technicians programmed the computer to return 20 candidates
whose known prints had features in common with what was
identified as Latent Finger Print #17 ("LFP #17"). On March 15,
2004, the computer produced 20 candidates that met the criteria.
Each candidate was identified by an AFIS "score," a number that
reflected a rank as to how closely the AFIS computer determined
each candidate's fingerprint matched certain features of LFP #17.
Also included was an identification number for each candidate
that allowed the FBI to retrieve the names, original fingerprint
cards, and demographic information of each candidate on the list.
Demographic information included name, date of birth, ***, race,
and social security number. This information allowed the FBI to
perform background checks on each of the 20 candidates.
Mayfield's AFIS "score" ranked #4 on the list of 20
candidates.No fingerprints ever actually matched according to these events. They only had a statistical chance of matching based on a "new" program entered by the FBI. And the opinion of fingerprint experts said it "may" match after said persons 4th Amendment rights were violated, 20 persons. This allowed the info and background checks of 20 individuals to be performed. Do the 19 others know they were searched? I find just this one point to be a prime example of overstepping based on the Patriot Act. During that whole procedure I quoted, no judge or court was involved that I can see.

[2Sheds_Jackson]

@ 2 sheds
Thanks for that link. It shows very well the opinion is correct. I cite this for example
No fingerprints ever actually matched according to these events. They only had a statistical chance of matching based on a "new" program entered by the FBI. And the opinion of fingerprint experts said it "may" match after said persons 4th Amendment rights were violated, 20 persons. This allowed the info and background checks of 20 individuals to be performed. Do the 19 others know they were searched? I find just this one point to be a prime example of overstepping based on the Patriot Act. During that whole procedure I quoted, no judge or court was involved that I can see.

Unless I've spun off the road into the tall grass - I think you're arguing the wrong point here.

The case wasn't brought due to, or ruled upon, those background checks. Background checks aren't a "search" - they're just an inquiry into publicly available information. A P.I. can do them I think - no judge, no warrant, no court, just $50 have a nice day. The 4th amendment violation that the case was about, was the "OK" to bug the poor guy's house and get his "private" stuff. They went into his house while his family was out. Very creepy.

As to the finger print - that's also a little bit beside the point. Internally, the FBI made the determination that it was his finger print. They had 5 separate experts verify it. They were all wrong, of course, but at the time, it was their judgment that it was in fact his finger print. Now whether the FBI then used the new Patriot Act, or the old FISA procedure, in both cases, they would have stood in front of a man who would have asked "now are you sure that's his finger print?" and in both cases they would have answered "yes, it totally is".

[shocker1]

Ok I see and the entering his home was a better point to argue, that is scary. The whole finger print deal just does not sit with me well how it dragnets totally innocent people in an investigation. I guess that goes on and if it does not go into personal info not available from a $50 check it is not a violation. However I do not think that is the extent they go in looking at your info. this whole deal does not sit well and at the very least requires us to vigilance. I hate reading that legal mumbo, i think they write like that so us lessers do not read it. Like our elected officials do you know.

[RECON DOC]

Hey 2sheds, give me your Po. Box and I'll send you a roll of this. p-)

http://www.fightingdemocrat.com/mt/images/RNC-toilet.jpg

[shocker1]

HAHAHA^
I don't know but saying the FBI had 5 fingerprint experts get it wrong and violate rights is a major concern. Somebody is not hiring good people as "experts". Unless there was some pressure cause they thought they hit pay dirt with a Muslim on their little list.

[JJC]

The fact that 5 FBI "forensic experts" made a mistake should not shock anyone. FBI's forensic science lab is notorious for forensic sceince blunders!! Forensic science is a junk science passed as the ultimate knowledge in our courts. There are no federal or any other guide lines to forensic science like any other scienctific community does. FBI as a "leader" in forensic science has been using something called a bullet lead analysis for over 40 years. The scientific world has found out that the method was not scientific or accurate at all. FBI has changed their finger print analysis and identification methodology after it too was found to be lacking in scientific accuracy. A Huston state crime lab was shot down by the government because the forensic scientist that the state and the justice system trusted was giving opinions that lacked anything scientific.... DNA analysis is the only thing I trust from forensic science, everything else ..........

[shocker1]

I sure do feel safe and secure now.

In my last job if I had calculations wrong, 156 2vdc cells would cook a 312vdc passenger bus. Oh my!, that's my bad let me recheck that. I am an expert you know.

[pistol]

I'm content to give up a little bit of my supposed freedom in exchange for stability. I guess it's just a question of finding the right balance.

Um. We've already found the right balance, and that is whatever George Bush, **** Cheney, and the new AG say it is. Don't like it? Maybe a year or two at Guantanamo with this terrorist-loving-bench-legislator would change your mind.

[Mastermind]

Although I firmly believe the Judge's ruling will be quickly over turned, I think there is some basis for such grandstanding. The complexities allowed when GW failed to accept the War Powers Act as Congress offered at the beginning (mainly due to the overwhelming, though momentary, feeling of outrage after 9/11), will eventually innundate just about every "war time" security effort on the part of the government. The outrageous behaviors on the part of both some Congress critters and journalist, and many more prominent Americans in supporting an enemy that is avowed to kill Americans no matter where or when, would have most certainly been curtailed under the sedition and treason powers the then created "War Dept" would have had (Sean Penn and Congsmn Murtah would now be among the 'vanished for the duration' group, among many notable others, no doubt). The enemy would not have been nearly as encouraged as it is now...and this thing might have been over by now.

I doubt very serious, too, that if the entire "Patriot Act" were tossed out into the Atlantic tomorrow, there would be much more danger to the USA. We see the idiotic airport searches, the wide open borders, the keystone cops escapades at covering up every Muslim committed act of terror here at home so they can say "See, we have been successful...no terrorist acts here at home!". And statements from the Chief of Homeland Security...yeah, get prepared, go buy "some duct tape and a gallon of drinking water." My God, how embarrassingly stupid! And, of course, the grand toe thumper...Osama is still the big 'ol Boogey Man traipsing about in tora bora...OOooo! Everyone...be afraid!

Oh, yeah...and don't even bother asking where a trillion bucks of US Tax payers hard earned cash has vanished to! "Move along, no one to see about all that....."

Regardless of folk's opinion's on my little opinions, , it's just pure conjecture ~s~. Now, we can expect years and probably decades of such legal wranglings as above.

GW, in my estimation, not only did not fully comprehend the enemy in front of America, he failed to comprehend the task ahead after 9/11 and totally failed to understand the political specturm arrayed against him here at home. He has been as informative as a garden stone with moss growing on the wrong side.

Everyone touted Rove as Bush's brain...well, if that is the case, Carl Rove was a complete dumb ass, as events have shown.

All, in my very humble opinion, of course.

[2Sheds_Jackson]

The fact that 5 FBI "forensic experts" made a mistake should not shock anyone. FBI's forensic science lab is notorious for forensic sceince blunders!!...

In this case (if you have the patience to read the opinion) - they're alleging it was something close to peer pressure which led one expert after another to concur with the one before. They allege it's a procedural problem. Each expert was apparently aware of the conclusions of the previous one, creating pressure to agree. Maybe that's true - surely something is wrong. It wasn't until the print went back to Spain that a truly "outside" expert said something was wrong.

And as an aside [\rant on]- I totally agree with Shocker1's half- joke about these opinions being written so as to make it difficult for the non-legally enabled. It has long been my contention that the legal profession is a prime example of governmental empire building - an exclusionary practice designed to keep the powerful in power, and the price of admission being a fortune paid to the right people. Every other industry (save for medicine, which does the same thing) - has worked to narrow the distance between "us" and "them" by using plain language. Not these folks - they know where their bread is buttered, and unfortunately they have the power to keep buttering it the way they want. The moment a lay person can mount a defense equally as easily as a legal professional, the party is over. The mere fact that an American has to utilize a 3rd party to effectively engage his own legal system is a crime in and of itself if you ask me. [\rant off]

No offense there hank - I gots nothing against people in the industry...just the fact that we need to have the industry to begin with. :)!


Um. We've already found the right balance, and that is whatever George Bush, **** Cheney, and the new AG say it is. Don't like it? Maybe a year or two at Guantanamo with this terrorist-loving-bench-legislator would change your mind.

If there was even a shred of legitimacy to your theory, you'd be in Gitmo right about now, wouldn't you? So would Cindy Sheehan, Penn, Moore, Sarandon, Sheen, Robbins - tens of thousands of Americans who disagree.

The sad fact is that the President gets to call the shots, within the confines of the law. Some folks such as yourself have had a dreadfully hard time coming to grips with that - starting before he even took office (via the "stolen" election, remember). I don't agree with everything he does, but I accept that he has the authority to do it. Just as I agreed that Clinton before him did, and whatever bought-and-paid-for douchebag gets in there next. All this foolish Gulag America stuff is just a waste of time.

[pistol]

The sad fact is that the President gets to call the shots, within the confines of the law. Some folks such as yourself have had a dreadfully hard time coming to grips with that - starting before he even took office (via the "stolen" election, remember). I don't agree with everything he does, but I accept that he has the authority to do it. Just as I agreed that Clinton before him did, and whatever bought-and-paid-for douchebag gets in there next. All this foolish Gulag America stuff is just a waste of time.

So you agree. The president is the decider and this judge is out of line for trying to limit his deciding.

[INAT]

This is a MAJOR BLOW to the Bush Administration and the Justice Department.

In sum, the Judge upheld the 4th Amendment of the Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Justice Department may want to elevate it to the 9th Circut Court in San Francisco, but chances of overturning this judge's ruling in that court are slim.

And the Justice Department may change hands by the time it reaches to the Supreme Court. The next administration may drop the appeal.

It's a good day for Democracy and due process.
Great news the Patriot act is scary much more than any terrorist.

[hank]

And as an aside [\rant on]- I totally agree with Shocker1's half- joke about these opinions being written so as to make it difficult for the non-legally enabled. It has long been my contention that the legal profession is a prime example of governmental empire building - an exclusionary practice designed to keep the powerful in power, and the price of admission being a fortune paid to the right people. Every other industry (save for medicine, which does the same thing) - has worked to narrow the distance between "us" and "them" by using plain language. Not these folks - they know where their bread is buttered, and unfortunately they have the power to keep buttering it the way they want. The moment a lay person can mount a defense equally as easily as a legal professional, the party is over. The mere fact that an American has to utilize a 3rd party to effectively engage his own legal system is a crime in and of itself if you ask me. [\rant off]

No offense there hank - I gots nothing against people in the industry...just the fact that we need to have the industry to begin with. :)!

No offense taken but the comments made here about 1) what happened and 2) why its either right or wrong confirm my feeling that people should not (and most cannot) represent themselves. I deal with doctors on legal issues everyday and if anyone thinks doctors are making things easier for us to understand then I'll just have to respectfully disagree.

All the extraneous rants aside there is nothing in this opinion that is surprising or contrary to what everyone who knows 4th A jurisprudence thought all along. It is not, and never has been, the state of the law that any governmental agency can invade a person's private communications without a warrant from a judge supported by probable cause. The tribunals and such that have been set up over the years to deal with probable cause exigencies have been tenuous at best. They have always, however, been required. The practice banned here, to allow LEO to invade private communications without any oversight by a judicial entity, simple flies in the face of the plain language of the 4th amendment. Only judges can grant warrants and the 4th A requires one supported by probable cause. Simple as that.

One last comment. Everyone hates lawyers until they need one. Just ask my clients. Most distrust lawyers and the legal system until the talk to me, get the plain language explanation 2 sheds refers to, and then get the result they want. Want someone to blame for the ills in the judicial system? Blame litigants not the system. The government needlessly litigated this case when the answer was never really in doubt. Congress authorized this garbage that is the Patriot Act when every constitutional scholar in the country said it was wrong. George Bush asked for and got powers no reasonable thinks he should have. All that without any involvement from a judge. What did Aiken do? Looked at the facts, and the law, and protected this guy's constitutional rights. Hard for me to lay any blame with the court. Aiken just cleaned up everybody else's mess.

hank

[hank]

The sad fact is that the President gets to call the shots, within the confines of the law. Some folks such as yourself have had a dreadfully hard time coming to grips with that - starting before he even took office (via the "stolen" election, remember). I don't agree with everything he does, but I accept that he has the authority to do it. Just as I agreed that Clinton before him did, and whatever bought-and-paid-for douchebag gets in there next. All this foolish Gulag America stuff is just a waste of time.


Wrong, the President does not now, and never has called the shots when it comes to warrants supported by probable cause. I think that is just a fundamental misunderstanding a lot of people here are having. Goerge Bush cannot simply say "I have PC" and do what he wants. That is what the Patriot Act essentiall did, and that is why Aiken struck it.

To make sure everyone understands - the Bill of Rights as drafted by the framers (admittedly a few years later) requires a warrant supported by probable cause (as decided by a judge) to allow search of private communications. That is and has been since the late 1700's the law in the US.

I just don't think it is a waste of time to enforce the 4th Amendment. I guess we just have to disagree on that issue. It is in the BoR for a reason. I don't want Bush reading my emails and I've got the 4th A in my pocket to protect me from that. As I have said many times and will repeat now, if you watn Bush to have this type of power then get a drive together to repeal the 4th Amendment and get it removed. Absent that thank the Good Lord Aiken had the backbone to strike this garbage.

hank

[Bia]

One afternnon in class, senior year HS two police officer showed up and took a young fellow off in cuffs.

Upon his return we learned he had been pulled over for a minor traffic violation and told the officers he had no ID and gave a false DOB & SSN as his license was suspended and he didnt want to go to jail. He said right before they wrote him the ticket they....right in the field took his thumb print.

That thumb print led them right back to him.

LOL he said his parents registered he and his siblings prints as younger children as many parents do in case of abduction type senerios.


Slightly off topic but intresting none the less.

[Hollis]

One afternnon in class, senior year HS two police officer showed up and took a young fellow off in cuffs.

Upon his return we learned he had been pulled over for a minor traffic violation and told the officers he had no ID and gave a false DOB & SSN as his license was suspended and he didnt want to go to jail. He said right before they wrote him the ticket they....right in the field took his thumb print.

That thumb print led them right back to him.

LOL he said his parents registered he and his siblings prints as younger children as many parents do in case of abduction type senerios.


Slightly off topic but intresting none the less.


For me it sounds like the fingerprinting worked in this case.

Driving while suspended? Humm why. Those drivers cost the Americans more than money, body parts, lives and untold losses.

Giving false information to a officer is against the law.

There is two strikes right there. The kid sound like a repeat offender, they probably had his prints from other issues.

In Oregon, I believe they take a thumb print for licenses. I would not believe anything this kid said.

He probably blames the cops and the judge for taking away his license (yes speculation on my part, I can be wrong).

[Bia]

For me it sounds like the fingerprinting worked in this case.

Driving while suspended? Humm why. Those drivers cost the Americans more than money, body parts, lives and untold losses.

Giving false information to a officer is against the law.

There is two strikes right there. The kid sound like a repeat offender, they probably had his prints from other issues.

In Oregon, I believe they take a thumb print for licenses. I would not believe anything this kid said.

He probably blames the cops and the judge for taking away his license (yes speculation on my part, I can be wrong).


Actually he was pretty honest about it.
Said he blew off a speeding ticket... never told his folks so yeah... he got suspended.
He admitted to us he lied to the officer in a panic... and simply hoped the field thumb print wouldnt get him.
I do know for a fact in Florida... an officer can take your thumb print in the field when issuing a ticket for a minor violation.

And yes... the fingerprinting worked flawlessly.

[pistol]

Goerge Bush cannot simply say "I have PC" and do what he wants.

That sounds like a pre-9/11 mindset to me.

[hank]

That sounds like a pre-9/11 mindset to me.

How did 9/11 change the requirements of the 4th Amendment?

hank

[2Sheds_Jackson]

Wrong, the President does not now, and never has called the shots when it comes to warrants supported by probable cause. I think that is just a fundamental misunderstanding a lot of people here are having. Goerge Bush cannot simply say "I have PC" and do what he wants. That is what the Patriot Act essentiall did, and that is why Aiken struck it.

The judge's ruling is about the signature block on the same PA warrant, right? The warrants were previously handled by the FISA court. The process after the PA is exactly the same, generating the same PC warrant, except it's an Executive branch signature that's needed, not a judicial branch signature. My question is - why is one inherently more trustworthy than another? My mistrust for everybody involved is just about equal.



To make sure everyone understands - the Bill of Rights as drafted by the framers (admittedly a few years later) requires a warrant supported by probable cause (as decided by a judge) to allow search of private communications. That is and has been since the late 1700's the law in the US.

But where are the words "court" and/or "judge" in the 4th amendment?

See the way I look at it is this; the constitution is written, and then for 200 years, we play a game of "Chinese whispers" as to what they meant. Now, the outcome of game of Chinese whispers depends upon the environment in which it is played and who is playing. If you put cupcakes on a table in a 4th grade classroom, and tell kid #1 that "there is a cupcake on the table", by the time it gets to kid #30, it's "teacher says we can have cupcakes!"

That's what I see happening with the constitution. Luckily- it's written in English - and I can go and read it, and don't need to refer to any of the cupcake-obsessed judges between me and the document for an opinion.

For the judge to rule these parts of the PA are unconstitutional strikes me as entirely correct - if, that is, she's referencing the cupcake whisperers - a group to which she herself belongs. I agree with you that signing PC warrants up till now has been entire under the judicial pyramid. Looking at the actual document, I'm not so sure.

BTW why couldn't they just get around all this wrangling by setting up some kind of 24-hour-a-day on-call judicial bench that they can go to for fast approvals? The entire purpose here was to bypass the slow approval process.

[Calanen]

Thanks for the link to the opinion, interesting read.

Just on the WW2 internment point, the Supreme Court found that this was consitutional at the time, although (presumably) would not do so now.




Before the Patriot Act, they would have had to take their case in front of a court (i.e. judges) who, being impartial (restraining my urge to laugh...the 9th Circuit Court was invoked during the proceedings p-)), would look at the FBI's case and see if it had merit to move forward.

My own experience has been that most judges are impartial, we all know a few that we consider lean to the left or the right, but generally, most try to do the right thing and be even handed.



But under the Patriot Act, all they had to do was go through the same process - but get that same approval...from a high ranking member of the Executive branch.


But it's really just getting approval from yourself or at least a bit too close to home - hence the need for the separation of powers.


Therein lies the seed of the power struggle - and a judge who is essentially allowed to decide on matters pertaining directly to her. Not saying that she is of course - just that it's a weakness of our system to allow one individual to enhance her own fortunes by deciding one way or the other.

There are reasonably strict rules for judges to recuse themselves if the matter pertains to them. I'm thinking you mean that the judge has adopted a perhaps controversial stance for career advancement? Who knows. Same could be said of the people issuing these approvals for wiretapping and surveillance.

It is not a perfect system, but having the grant of warrants one step removed from the law enforcement body by a usually impartial judge is a necessary check on the potential excesses of executive power.



If the FBI had gone to the panel of judges on the FISA court, with the same certifications, the same allegations, the same connections and reasonable suspicions, they would likely have been given the same OK to go ahead and do the same surveillance.


Probably, which is why they should have gone to Court. Warrant hearings are not in depth, the judge takes law enforcement on their word.



We all know what the 4th amendment says - and I don't find the word "court" or "judge" in it anywhere. One could easily argue that it merely demands that some unspecified organ of the government be presented with reasonable evidence (probable cause), name the person / thing they are after, and that it be supported by an official under oath. But the basis for ruling the 2 provisions of the Patriot Act is the fact that no court was involved in the approval process.

In other words, what I'm saying is (and not very well) - is that there was plenty of probable cause here. .


It's true that the word court and judge is not written in the Fourth amendment, but the process through which the amendment was incorporated made clear that obtaining a warrant through a judge was what was intended. It would not make sense to take an affirmation to a member of the Executive branch.

The Fourth Amendment was directed to remedying the evil of the British 'writs of assistance' primarily issued to ensure that His Majesty's customs duties were paid, which gave open slather to enter any dwelling, go to any place, take any thing...the writs of assistance were granted by a justice of the peace or a judicial officer on oath, but were transferable, which made them easily open to abuse.

Although that said, they were still obtainable from the judiciary rather than the Executive (although, if you could have somehow gone to see the King, he could have lawfully given you one as well, given he was the sovereign with absolute power - no constitution restricted him).

I thought this quote was good:


Page 43 - OPINION AND ORDER


Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not
be easily altered by the expediencies of the moment.


Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.


The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so. For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as illadvised.


In this regard, the Supreme Court has cautioned: The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation.


For private dissent, no less than open public discourse, is essential to our free society. Keith, 407 U.S. at 314.

[ElHombre]

Two days after 911 the Patriot Act was ready to go.

That's because it's authors had alreay had it written up for years before 9/11 ever occured. Kind of makes one wonder what they were thinking about while writing it...

[little icebear]

That's because it's authors had alreay had it written up for years before 9/11 ever occured. Kind of makes one wonder what they were thinking about while writing it...

Be careful or everybody will point the finger at you and yell something about you wearing a tinfoil-hat.

Seriously - 9/11 was the best thing that could happen to the neocons. They could get away with everything they only dared to dream about.

[2Sheds_Jackson]

Just on the WW2 internment point, the Supreme Court found that this was consitutional at the time, although (presumably) would not do so now.

But the supreme court found FDR's domestic wiretapping was illegal and unconstitutional at the time - and he continued it anyway.

I dunno - I'm just kind of playing devil's advocate here. Obviously we need separation between the people asking for the warrant, and the people allowed to OK the warrant. As I see it, the FISA court isn't exactly an advocate for the little guy, or outside "the system" either. Even though their desk has another logo on it, I don't find them any more ethical, incorruptible or even handed than any other individuals. I guess a little separation is better than no separation, even if it's only on paper.

The thing that I find most interesting is the constitutional mission creep. It's fun for me to point it out, even if I do agree with the end result after all. The word "judge" and the word "court" both existed when the Bill of Rights was written, yet it was specifically written to exclude those words. Now today, how can we insist that both of those words were exactly what was intended - and in fact nothing else will do? It's because we're not looking at the constitution, we're looking at two hundred years of Judicial branch employee opinions in order to settle an argument about Judicial branch employees. It is any wonder they've ordained themselves as being essential and indispensable?

[pistol]

How did 9/11 change the requirements of the 4th Amendment?

hank

Um, because now if we don't give Bush and Cheney the power they say they need to protect us, there is a chance we could get hit again.

[Calanen]

But the supreme court found FDR's domestic wiretapping was illegal and unconstitutional at the time - and he continued it anyway.


There is a quote attributed to Andrew Jackson where he said

"The Supreme Court has made their ruling. Now let them [try to] enforce it.'



I dunno - I'm just kind of playing devil's advocate here.


He always pays better so I can't argue with that....


The thing that I find most interesting is the constitutional mission creep. It's fun for me to point it out, even if I do agree with the end result after all. The word "judge" and the word "court" both existed when the Bill of Rights was written, yet it was specifically written to exclude those words. Now today, how can we insist that both of those words were exactly what was intended - and in fact nothing else will do? It's because we're not looking at the constitution, we're looking at two hundred years of Judicial branch employee opinions in order to settle an argument about Judicial branch employees. It is any wonder they've ordained themselves as being essential and indispensable?

It is an interesting observation - I've read the thing so many times, and to be honest, I've never consciously noticed that omission - so its an interesting problem for me to consider.

I'm not sure if it was written to exclude those words, or whether it was just considered as taken as read that you get warrants from justices, at the time that included Justices of the Peace.

That is, a warrant was not a warrant if you didn't get it from a judge. When you look at the texts of constitutional debates, that appears to have been taken as read - i.e., no one seemed to be arguing that there could be warrants without judges during the debates.

I do agree that there are times, and they would be rare times - when you just have to say, whatever the constitution says or whether warrants are needed or not - we just have to act now or a lot of people are going to die. These are very rare circumstances - however. If the CIA suspects a nuke is inbound on a cargo container for NY harbour, I dont mind if they go and stop it before the warrant is issued. It cannot be a generalised exception whenever it is convenient, and become the norm for the way law enforcement conducts themselves.

My problem with any of these things is that you look around the world at the places that have the greatest longevity in terms of social stability - they usually have stable democracies with entrenched separation of powers. The more you blur that line, the more you are likely to have instability. Invariably, the executive acting on its own is backed by the military - which can lead to unfortunate consequences.

[Mastermind]

Pretty clear insight in these posts...really makes a citizen start to wonder.

Is it actually possible the goverment people in control of the government do exactly what ever the hell they please based on the current emergency at hand? From Lincolin to FDR, that seems to be the case as time went on. For example..and a glaring one at that.... the judicial, recognizing the need and the apparent logic at the time, decided it was perfectly all right to ignore the Constitution and the Bill of Rights in order to say..."Hell, yeah...lock up those American citizens of Japanese descent...that's all just fine. Take their property, too. It's perfectly Constitutional."

It clearly was not Constitutional at all...any dumb ass who could read plain english and had read the Constitution and Bill of rights could tell that! Later, the SCOTUS came around and agreed with the dumb asses!

What about the fiasco of Federal Social Security, completely extra-Constitutional, and good 'ol FDR threateneing to stack the Surpreme Court with hacks of his choosing if they ever ruled on it, because it was not just unconstitutional...it was obviously unconsitutional, as it is to this very day....and the court did exactly what FDR expected, they folded and now we have Social Security and the matter has never been tested.

The list is a pretty long one of the unconstituional things our gvt does every day...think about the "War on Drugs" and in the name of that phoney BS war, we now have the massive law enforcement industry, the millions in prison and the outrageous search and seizure rights the govt has over any citizen even suspected of possessing illegal drugs or paraphenalia. They will take your car, your home and even your damn kids! The Supreme Court just this year again upheld the right of the police to break into your home completely unannounced, and now drugs be damned...over anything the police say they want!

What about the usurping without even a trial, of your right to keep and bear arms if you are involved in a domestic violence police report? Just the report and detention is enough for you to lose your constitutional right. No trial...no representation....just the cops!

See, all they have to do is redefine words just a little or cloak their actions in the old phrase "Good for the Common Welfare" and presto, it's just fine to take the lives of human babies while still in the womb...even the right to life means absolutely nothing...all they had to do is redefine "life", and that put abortion right in there in the Constituion..although, you will never find a single mention of the word there...what about Federally enforced bussing? What about the Feds gaining control of the education system..Find that in the Constitution!

None of that has a damn thing to do with the federal authority or is approved by the Constitution. Yet, here we are today...all paying Federal income taxes, getting welfare and SS, Medicare, abortions, and just any 'ol thing the Feds want...and it just keeps getting worse.

In the bottom distillation of the argument on this ...the Constitution means exactly what ever the people in control want it to mean. And, there's not one damn thing any poor old group of common citizens can do about that.

As for the Patriot Act and the encroachment of civil liberty, our elected folks all were on that little band wagon...all for the common good. Safety of the nation, they said...and mostly all of them voted for it, and a great many hollered about the encroachment on liberty...but, still, they voted for it.

Judges be damned...if the government wants it bad enough, they will find the right judge or judges to simply say..."Well, we see nothing at all wrong with it...it's all for the common good, ya know. It keeps the nation safe." But safe from what exactly, they just never seem to get around to that, do they? And, one thing the Constitution grants power to the Federal government over, securing the borders, they still don't bother with that very well, now, to they? Seems like they just do what ever they want to fit the need of the day.

[hank]

But the supreme court found FDR's domestic wiretapping was illegal and unconstitutional at the time - and he continued it anyway.

I dunno - I'm just kind of playing devil's advocate here. Obviously we need separation between the people asking for the warrant, and the people allowed to OK the warrant. As I see it, the FISA court isn't exactly an advocate for the little guy, or outside "the system" either. Even though their desk has another logo on it, I don't find them any more ethical, incorruptible or even handed than any other individuals. I guess a little separation is better than no separation, even if it's only on paper.

The thing that I find most interesting is the constitutional mission creep. It's fun for me to point it out, even if I do agree with the end result after all. The word "judge" and the word "court" both existed when the Bill of Rights was written, yet it was specifically written to exclude those words. Now today, how can we insist that both of those words were exactly what was intended - and in fact nothing else will do? It's because we're not looking at the constitution, we're looking at two hundred years of Judicial branch employee opinions in order to settle an argument about Judicial branch employees. It is any wonder they've ordained themselves as being essential and indispensable?

You've tried to make this point before and I'll say again why it is wrong. The only entity that can now issue, or could issue then, a warrant is a court. Warrants are now and were then inherently judicially created documents. The problem is (as you have said and Aiken did) is when the executive branch appoints the guy signing the warrants. That was new with the Patrio Act and should not have happened.

As to your suggestion that there be a 24/7 ready judge for this stuff is not original. There are tons of administrative judges throughout all levels of government that exist only to issue PC warrants. The Bush administration had them before hte Patriot Act but wanted to dispense with it. the NSA has judically appointed admin judges for just this purpose. My law partner is a former judge and he has tons of stories of getting called out of bed to meet with a LEO to sign a warrant. We defended a cop last year who got a warrant for a drug bust at 11:30 at night from a judge who works all night in the ATL to issue PC warrants. So the answer to your question is that the unavailability of judges has never stopped the issuance of PC warrants and that was not what motivated Bush here.

hank

[hank]

I do agree that there are times, and they would be rare times - when you just have to say, whatever the constitution says or whether warrants are needed or not - we just have to act now or a lot of people are going to die. These are very rare circumstances - however. If the CIA suspects a nuke is inbound on a cargo container for NY harbour, I dont mind if they go and stop it before the warrant is issued. It cannot be a generalised exception whenever it is convenient, and become the norm for the way law enforcement conducts themselves.

Remember that such a ship is not protected by the 4th Amendment. The 4th Amendment only applies to US citizens on US soil or aliens on US soil. No judge needed.

Outside the US you can search anyone you want and US LEO do exactly that without a warrant all the time.

This case is unique because it involved a US citizen on US soil. That was the new ground broek nby the Patriot Act.

hank

[hank]

Um, because now if we don't give Bush and Cheney the power they say they need to protect us, there is a chance we could get hit again.

Yikes, so we just take their word for it? That type of thinking is what got Hitler in power. And Stalin. The 4th Amendment is our friend, not an enemy.

Remember also that all the illegal searches in the world won't do any good when terrorist who are on an alert list are allowed to board planes because the security guards aren't paying attention. To say that 9/11 happened because of 4th Amendment protections is just not accurate in any way.

hank

[hank]

But the supreme court found FDR's domestic wiretapping was illegal and unconstitutional at the time - and he continued it anyway.

That is certainly true. Its also true that FDR threatened to increase the size of the court to get the new deal past constitutional challenges under the commerce clause. As as result of that threat the switch in time that saved nine took place and the new deal was allowed and federal governmental power skyrocketed and here we sit with an unmanageable bureaucracy.

FDR was a dem, right? So this really isn't a left/right issue. Its about the rule of law and if a Presidence doesn't like the rule he should not ignore it, he should change it. Absolute power corrupts absolutely.

Now before you give me some stuff about judges having absolute power remember that Congress can change the law at any time (and often have in response to SC decisions).

hank

[pistol]

Yikes, so we just take their word for it? That type of thinking is what got Hitler in power. And Stalin. The 4th Amendment is our friend, not an enemy.

Remember also that all the illegal searches in the world won't do any good when terrorist who are on an alert list are allowed to board planes because the security guards aren't paying attention. To say that 9/11 happened because of 4th Amendment protections is just not accurate in any way.

hank

Look, I don't make Republican talking points, I just blindly repeat them.

[dimasorokine]

Hank,

Very informitive posts, reading this thread has allowed me to learn more than a few things about law in the US without having to sift through overly complicated textbooks.

Thanks :)
-Dima